' IJAZ AHMAD CHAUDHRY, J. Muhammad Akbar appellant has filed Criminal Appeal No,288 of 1992 who was convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs,50,000 or in default of payment thereof to further undergo R.I. For two years and the fine if recovered was to be paid to the legal heirs of the deceased as compensation by the learned Additional Sessions Judge, Vehari, vide judgment dated 31-10-1992. However, co-accused Basharat, Manzoor Ahmad alias Joora and Nazir Ahmad were acquitted. Criminal Revision No,229 of 1992 has been filed by Mukhtar Ahmad complainant/petitioner for the enhancement of sentence. As both the above-said matters have arisen out of the same judgment and same questions of facts and law are involved, I propose to dispose of the same together through this single judgment.
2. The occurrence in the present case has taken on 29-6-1990 at 12-00 noon within the area of Chak No,19/WB, 10 Kilometers away from Police Station Machiwal which was reported the same day at 8-30 p.m. By Mukhtar Ahmad P.W.6 who is father of the deceased Azhar Mukhtar aged about 8/9 years through statement (Exh.PB) recorded by Aftab Ullah Khan S.-I./S.H.O. P.W.9 on the basis of which formal F.I.R. No,120 of 1990 (Exh.PB/1) was recorded at Police Station Machiwal by Muhammad Jamil P.W.2 Head Constable.
3. The brief facts of the prosecution case as narrated in the F.I.R. (Exh.PB/1) are that Mukhtar Ahmad complainant was posted as X-ray Technician Tutor in Para Medical School at Sahiwal and his parents were residing at Chak No,19/WB. He had sent his son Azhar Mukhtar aged about 8/9 years about three days before the occurrence to meet his grand-mother with his relative Manzoor Ahmad. On the day of occurrence he himself went to the house of his parents in order to bring back his son Azhar Mukhtar. One Muhammad Din son of Bashir Ahmad alias Amli was going to be married on the day of occurrence. The Baraat came nearby the house of the complainant for going to the house of Muhammad Yousaf at 12 noon and the complainant along with Talib Hussain P.W.7 came out of the house to see the Baraat. According to the complainant like other children Azhar Mukhtar also was present there as the currency notes were being thrown upon the children and Azhar Mukhtar also joined the other children in picking up the currency note. Muhammad Akbar appellant was also a member of the Baraat, who gave fist blow to Azhar Mukhtar that why he had picked the currency notes. The deceased abused him on which Muhammad Akbar appellant took out his pistol, whereupon deceased Azhar Mukhtar tried to run away but Akbar appellant fired at him hitting on the right side of back, who fell down and the appellant succeeded in running away. Azhar Mukhtar was taken to the hospital where he died. The complainant further stated that at the start of the Baraat, Basharat, Manzoor and Nazir accused had also fired in the air, which resulted into causing of injuries to one Manzoor Ahmad.
4. During investigation conducted by Aftab Ullah Khan S.-I. P.W.9 the appellant was arrested and he led to the recovery of pistol which was taken into possession and after the conclusion of the investigation challan was submitted in the Court. Then copies of the statements of the witnesses and other documents were supplied to the accused as required under section 265-K, Cr.P.C. And charged was framed which was denied by them and the prosecution produced as many as nine witnesses, Mukhtar Ahmad father of the deceased (complainant) furnished the ocular account.
The medical evidence was led by Dr. Bashir Ahmad P.W.4 while the investigation was conducted by Aftab Ullah Khan S.-L/S.H.O. P.W.9. However, the remaining witnesses are more or less of formal nature. When examined under section 342, Cr.P.C. The appellant professed innocence and claimed false implication. The appellant did not opt to appear under section 340(2), Cr.P.C. But he produced Muhammad Hanif D.W.1 and the learned trial Court after hearing arguments of both the parties has passed the impugned judgment.
5. Learned counsel for the appellant contends that the complainant Mukhtar Ahmad P.W.6 was not present at the spot, who was serving at Sahiwal and failed to establish his presence at the spot. It is also contended that said P.W. Was unable to tell that in fact two Baraats had arrived at the house of Muhammad Yousaf. According to the learned counsel P.W.6 also could not tell even the names of the Baraaties, Lambardar and Councillor and he had also admitted during cross-examination that he had stated something in his statement on hearsay evidence which was said to him in the hospital. It is also contended that during the trial P.W.6 has not stated anything about the firing made by Basharat, Nazir and Manzoor as alleged in the F.I.R. (Exh.PB/1) and he was confronted with his previous statement on material points. It is also contended that Talib Hussain also did not try to save the deceased from the hands of the appellant when he had given kicks who was young boy and they were close relatives and also they did not try to save him when the appellant took out the pistol, which shows that they were not present at the spot. It is also contended that no empty was recovered from the spot and the appellant was involved in the case due to the enmity with Dhodi baradari and the defence plea is borne out from the evidence on record. Lastly it is contended that the appellant has already served out about 4-1/2 years, which will meet the ends of justice as at the most it was a case falling under section 304, P.P.C.
6. Learned counsel for the complainant on the other hand opposes this appeal on the ground that the appellant has committed heinous offence of murdering a young boy without any reason and the prosecution story was supported by both the eye-witnesses who being present at the spot had witnessed the occurrence. It is also contended that there was no previous enmity or grudge to falsely implicate the appellant in the present case by letting off the real culprit. Lastly it is contended that the appellant has committed intentional murder through fire-arm for no fault of deceased and he should be awarded normal penalty of death.
7. I have heard the arguments of the learned counsel for the parties and also perused the record.
8. It is claimed that F.I.R. Was lodged immediately after the incident as the occurrence had taken place at 12 noon while the statement of P.W.6 Mukhatar Ahmad under section 154, Cr.P.C. Was allegedly recorded at 3-30 p.m., in the hospital but during cross-examination it was stated by Talib Hussain P.W.7 that the complainant had gone to the Police Station for reporting the occurrence. On the other hand the version of Aftab Ullah Khan S.-I./S.H.O. P.W.9 who recorded the statement Exh.PB on the basis of the which F.I.R. Was lodged is that on receipt of the information about the fight he proceeded to the hospital where he recorded the statement of the complainant who was present there. The prosecution has not succeeded in proving that the F.I.R. Was lodged promptly in the manner narrated by the complainant or the Investigating Officer and it can safely be said that it was recorded after preliminary investigation as the complainant P.W.6 during cross-examination admitted that he had mentioned certain facts in his statement under section 154, Cr.P.C. After hearing from others in the hospital and as such some portion of his statement was based on hearsay evidence.
9. The presence of P.W.6 at the place of occurrence was also doubtful as he admittedly was working as an X-ray Technicial at Sahiwal at the time of occurrence. His son Azhar Mukhtar (deceased) had already gone to see his grandmother three days before the occurrence. When the occurrence took place it was a working day and P.W.6 has not stated in the F.I.R. That he had obtained any leave. He also failed to show that when he had reached the palce of occurrence on the said date but while making statement in the Court he stated that a day before the occurrence he had come to the village. It is admitted fact that the complainant was not residing permanently in the village and he could not disclose the names of Baraties Lambardar and elected Councillor of the village and also was not aware that two Baraats were to arrive in the house of Muhammad Yousaf at the same time. Also admitted during cross-examination that he had mentioned the names of Basharat, Manzoor and Nazir in the F.I.R. That they had also made firing in the Baraat before the firing at the deceased by Akbar appellant, but according to him he did not hear any noise of firing and even a single shot was not fired but admitted that in his statement Exh.PB he had stated that the shots were fired by the above said three persons and Ghafoor a child also received an injury. This factum has not been disclosed by him in the examination-inchief but it was admitted that he had stated so on the telling of the witnesses to him in the hospital. Admittedly some portion of his statement is based on hearsay on the asking of the other persons present in the hospital. So no sanctity can be attached to his statement and he has failed to prove his presence at the spot at the time of incident. However, Talib Hussain P.W.7 is resident of the same village and he stated that two Baraats were to arrive to the house of Muhammad Yousaf. His presence at the spot is quite natural and he has succeeded in proving that he was present in the village at the time of occurrence. But he has also not spoken the whole truth as in the statement Exh.DB before the police he got mentioned that Basharat Nazir and Manzoor had also made firing in the air and one of the shot fired by them injured Ghafoor. This fact was not narrated by him while making statement in the Court and has concealed this fact. The non-mentioning of this fact is fatal to the prosecution story being concealment of material point. P.W.9 Aftab Ullah Khan also admitted that two Baraats were to arrive in the house of Muhammad Yousaf and another Baraat in the same Mohallah had arrived as well. The prosecution has concealed the factum of receiving of injury by Ghafoor who was medically examined by Dr. Bashir Ahmad P.W.4 on the same day on 29-6-1990 at 2-15 p.m. And fire-arm injury was found on his person. As such it is established that both the eye- witnesses had not spoken the whole truth and they have falsely stated about the intentional murder of Azhar Mukhtar by Muhammad Akbar appellant. It is however, established that there was no enmity or grudge to falsely implicate Akbar by Talib Hussain P.W.7 but at the same time the appellant had also taken no motive for committing intentional murder of the deceased. It is also borne out that the firing was made by the Baraaties in the air at the time of incident and another child namely Ghafoor received fire injury due to the said firing as well. Admittedly Muhammad Akbar appellant was also member of the said Baraat. It can be inferred after reading the whole evidence that in the Baraat the firing was made by the appellant and his co-accused who have been acquitted and the shot fired by the appellant had accidentally caused injury on the person of the deceased. Offence udder section 302 P.P.C. In such circumstances was not made out and at the most the appellant can be held guilty for the offence under section 304, Part-III, P.P.C. As the appellant had not intentionally taken life of Azhar Mukhtar deceased through firing, which was being made by him along with others on the occasion of Baraat for enjoyment. Hence, the conviction of the appellant recorded by the learned trial Court under section 302, P.P.C. Is converted to section 304, Part-II, P.P.C. (old) and he is sentenced to R.I. For five years. However, direction regarding payment of fine is maintained.
10. With the above alteration in the conviction and sentence the impugned judgment is modified and Criminal Appeal No,288 of 1992 filed by Muhammad Akbar appellant stands disposed of. He is present on bail and warrants of arrest shall be issued against him by the learned Sessions Judge, Vehari, to serve out the remaining sentence if any.
11. In view of the above no question arise about the enhancement of sentence of Muhammad Akbar appellant recorded by the learned trial Court as this Court has further reduced the same on merits.
Therefore, Criminal Revision No,229 of 1992 seeking enhancement of sentence is dismissed.